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Can marriage equality be overturned? It’s unlikely but not impossible.
Here's what will happen if the Supreme Court overturns marriage equality.
It's going to be harder to overturn marriage equality than Republicans think — but that doesn't mean they won't try.
Since Donald Trump took office, the GOP has been pushing the U.S. Supreme Court to overturn its landmark ruling that granted same-sex couples the right to marry nationally. While the court doesn't seem too eager to revisit the case, that could change as political pressure mounts from the right, including from notorious homophobe Kim Davis.
Related: Kim Davis is petitioning the Supreme Court to overturn marriage equality
Here's everything you need to know about the state of marriage equality in the U.S., and how that could change.
Laws prohibiting same-sex couples from marrying were deemed unconstitutional by the 2015 Supreme Court ruling, Obergefell v. Hodges. This could change if the court were to revisit and reverse the ruling, as it did with Roe v. Wade, which previously deemed abortion bans unconstitutional.
If the Supreme Court reverses Obergefell v. Hodges, marriages between same-sex couples will still be recognized federally under the Respect for Marriage Act. Signed into law by President Joe Biden in 2022, the act mandates that the federal government recognizes same-sex and interracial marriages, and that all states recognize those performed in other states.
The act does not require states to allow marriages between same-sex couples. As state bans on these unions were struck down in Obergefell, such bans could be enacted again if Obergefell is overturned. If that were to happen, the fallout would likely be similar to that after Roe v. Wade's reversal, in which red states immediately enacted bans.
As the Respect for Marriage Act was passed by Congress and signed into law by a president, the same would have to happen for it to be overturned. This is a difficult task even with Republicans in control of the House of Representatives, Senate, and presidency, as Democratic lawmakers in the Senate could filibuster any such proposal.
It is also unclear if all Republicans would support such a proposal, as two-thirds of U.S. adults (67 percent) support marriage equality, according to a recent survey from the Public Religion Research Institute, including 50 percent of Republicans, 83 percent of Democrats, and 72 percent of independents.
The Respect for Marriage Act also encompasses interracial marriage, which has even more support at 94 percent, according to a Gallup poll.
While the Supreme Court has made no official move to reconsider marriage equality, nine states have recently introduced resolutions asking the court to hear the case again. None have yet passed, and even if they were to, the resolutions are nonbinding — meaning they carry no legal weight, and the court is not obligated to hear them.
However, some justices have voiced opposition to Obergefell even after the ruling. When the conservative majority created by Donald Trump overturned Roe v. Wade, Clarence Thomas wrote in his concurring opinion at the time that the court should also revisit and overrule decisions that prevent state restrictions on contraception, marriage equality, sodomy, and other private consensual sex acts, calling the rulings "demonstrably erroneous."
Kim Davis, a former county clerk who spent five days in jail in 2015 for refusing to give a gay couple a marriage license, asked the Supreme Court in July to negate the $360,000 damages she has been ordered to pay to the couple. The filing also asked the court to revisit and overturn Obergefell.
This resolution, like those filed in nine states, is nonbinding. The Supreme Court is not obligated to hear it, and has not yet agreed to hear Davis' case or Obergefell. While the court could use the opportunity to revisit marriage equality, it is also possible that it takes on Davis' case without agreeing to revisit Obergefell.
Those resolutions being proposed in state legislatures urging the U.S. Supreme Court to overturn marriage equality aren’t happening organically. Instead, they’re the result of an orchestrated campaign by MassResistance, an extremist anti-LGBTQ+ organization that has equated homosexuality and bisexuality with pedophilia and bestiality.
The group hasn’t been in the news much in the past few years, but its presence has resurged with the anti-marriage equality resolutions. “MassResistance has drafted text for state legislature resolutions that call on the U.S. Supreme Court to reverse its infamous and illegitimate Obergefell ruling,” says a post on the group’s website. “That 2015 decision forced the idea that the U.S. Constitution requires states to allow same-sex ‘marriage.’”
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